National Labor Relations Board Mired in Uncertainty

Recently, President Obama announced his intention to nominate three members to the National Labor Relations Board (“NLRB”), but the legal status of the NLRB is far from clear.

The five-member NLRB issues decisions that interpret and apply the National Labor Relations Act (“NLRA”) to employers and unions. The NLRA impacts both union and non-union companies. The five members of the NLRB serve staggered terms and must be nominated by the President and confirmed by the Senate. On April 9, 2013, President Obama renominated current Democratic Chair Mark Gaston Pearce, whose term expires on August 27, 2013. Pearce is a union-side labor attorney from Buffalo, New York. The President also nominated two management-side labor attorneys, Republicans Philip Miscimarra and Harry I. Johnson III. Miscimarra is a partner with Morgan, Lewis & Bockius in Chicago, and Johnson is a partner with Arent Fox in Los Angeles.

These three nominees join two other Democrats who were previously nominated, Richard Griffin and Sharon Block. Griffin is a former General Counsel for the International Union of Operating Engineers, and Block is a former staff counsel to the late Senator Edward Kennedy, and served under former Democratic Secretary of Labor Hilda Solis. Griffin and Block are currently serving as “recess” appointees to the NLRB.

Part of the problem with the five NLRB nominations is that the recess appointments of Griffin and Block were declared unconstitutional and invalid earlier this year by the District of Columbia Circuit Court of Appeals in Noel Canning v. NLRB. Under that decision, all of the NLRB decisions issued after Griffin and Block were named recess appointees on January 4, 2012 are void because the NLRB lacked the three-member quorum necessary to issue decisions. On April 25, 2013, the NLRB recently requested discretionary review of the Noel Canning case by filing a petition for a writ of certiorari with the U.S. Supreme Court.

Some Senate Republicans have declared their intent not to confirm the package of the five NLRB nominations since it includes the two “recess” appointees who were previously declared unconstitutional. Whether the Senate will actually confirm this package of nominees seems up in the air at this point given the position of many Senate Republicans.

During 2012, the NLRB issued a number of decisions which are viewed as tilting the playing field in favor of unions and employees, and have drawn the ire of employers. Some of these decisions also impact non-union employers in areas like social media, employment at-will statements, and confidentiality of investigations involving employee misconduct. But these decisions, for the time being, have been declared void by the D.C. Circuit Court of Appeals. At the same time, Chairman Pearce has announced his intent to have the NLRB continue with business as usual, even though the D.C. Circuit has ruled that the 2012 decisions were invalidly issued when the NLRB did not have a quorum.

To add greater uncertainty to the mix, the House of Representatives narrowly passed a bill on April 12, 2013, essentially along party lines, that would strip the NLRB of authority to take any substantive action until the Supreme Court rules on the anticipated appeal of the Noel Canning decision, or the Senate confirms a quorum of members to the NLRB. This bill is HR 1120, titled “Preventing Greater Uncertainty in Labor-Management Relations.” A similar bill was previously introduced in the Senate. But the Senate bill died in committee, and was never brought up for vote by the full Senate – which is not surprising given the Senate’s Democratic majority. Now that the House passed HR 1120, the Senate will likely be forced to at least consider the issue.

Even if the Democratic-controlled Senate were to pass the bill (which seems highly unlikely), President Obama has indicated that he would veto the legislation rather than concede that his recess appointments were unconstitutional and that the NLRB lacks authority to take any action since it does not have a quorum, at least according to the Noel Canning decision. And it is far-fetched to think that a presidential veto would be overridden by the needed two-thirds majority vote in both the House and the Senate.

Takeaways:

So where does this leave employers? Confused about the current state of labor law and waiting for action by the Supreme Court, most likely. Even if the Supreme Court grants discretionary review of Noel Canning, it is unlikely that the Supreme Court would issue any decision resolving this dispute before sometime next year.

Why should employers care about this dispute? Even though the NLRB’s 2012 decisions are void according to the D.C. Circuit, Chairman Pearce is expected to continue to have the various Regional Offices of the NLRB investigate and prosecute violations of the NLRA following the precedents set by 2012 NLRB decisions. Employers that want to challenge the findings of a Regional Office about alleged unfair labor practices that violate the NLRA will initially go to trial before an NLRB Administrative Law Judge, who will likely follow the 2012 NLRB decisions, at least until the Supreme Court rules otherwise. Thus, employers would be wise to consult with labor counsel before taking action with respect to unions, or taking action against employees in areas like social media, at-will statements, or confidentiality of investigations, all of which now have the close attention of the NLRB. Stay tuned.

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About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

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